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GAO investigating EPA's low enforcement numbers

The Government Accountability Office (GAO) has launched an investigation into declining enforcement actions against companies accused of violating EPA's pollution standards during the Trump administration.

A GAO spokesman said Tuesday that the probe began in October, with a focus on 2017 enforcement data that showed a significant drop in dollar amounts for settlements made with polluters.

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The final report is underway but not expected to be completed “until later in the year, likely fall,” the spokesman said.

News of the probe comes as EPA’s Inspector General (IG) continues its own investigation into the agency's enforcement figures and as the EPA is gearing up to release its 2018 enforcement numbers, which are expected to be even lower than the previous year.

Data compiled by Public Employees for Environmental Responsibility (PEER) and released Tuesday, found that the EPA in 2018 generated the fewest new criminal case referrals for prosecution to the Justice Department than any year since 1988.

Those numbers follow a November report by the Environmental Data and Governance Initiative, which found that EPA’s data showed steep declines in enforcement and compliance actions and outcomes. The 2018 declines were seen in civil settlement amounts, cases filed against polluters, compliance orders and criminal enforcement.

Last year’s annual EPA enforcement report showed that polluters were fined a total of $1.6 billion in penalties in fiscal year 2017 — about one-fifth of the $5.7 billion EPA penalties collected the prior year.

The drop in the EPA's enforcement of regulations were even more stark when looking at the agency's actions on injunction relief — the monetary commitments polluters pledge to spend in order to remediate their pollution and keep it from recurring.

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Injunctive relief in 2017 stood at $20 billion, compared to $13.7 billion the previous year, but $15.9 billion of the recent total come from the landmark Volkswagen settlement. When the settlement is taken out of the calculation, injunctive relief payments in fiscal year 2017 totaled $4 billion — less than one-third of the previous year's amount and less than half of the total in 2015.

EPA’s IG office in November began a comprehensive investigation, comparing the agency's enforcement rates between 2006 and 2018. The probe is comparing overall enforcement trends and intends to determine the factors for the falling numbers.

At EPA, political officials are said to be aware of the bad optics of lower enforcement numbers.

“The numbers are down,” said an EPA source with knowledge of internal discussions. “Now there is a different emphasis -- we’re encouraging compliance... so you can't just count the number of cases.”

Internal discussions include how to highlight the data to show the agency’s renewed focus on seeking polluter compliance, rather than legal action, according to the source.

Compliance can include working to adjudicate issues with the fossil fuel industry outside of the legal system, offering self-audits, and giving more enforcement power back to the states.

"Their view is enforcement is not the end. Enforcement is a means to the end, and the end goal is compliance. And that's what we want to count," the source said.

When reached for comment, an EPA spokesman pointed to a previous statement that read in part: "The outcomes EPA works to achieve are compliance with environmental laws, addressing pollution and public health risks, and ensuring a level playing field for companies."

The EPA over the summer took a step that decreased the number of open enforcement cases that the agency referred to DOJ but had not yet been filed by the department. The policy, put into effect in June, aimed to "reduce the number of all open civil judicial cases that are more than 2.5 years old without a complaint filed," according to an internal EPA document obtained by The Hill.

The document showed that in a month, the EPA decreased the number of open cases by more than 50 percent, down to 122 cases remaining at the end of June.

On a call with reporters last week announcing the EPA’s nearly $500 million settlement with Fiat/Chrysler, Acting Administrator Andrew Wheeler teased the new enforcement numbers.

“Enforcement and compliance are top priorities for EPA," he said. "In the coming days we will be releasing our full fiscal year 2018 numbers."

He added that EPA saved “809 million pounds of pollutants and waste -- almost twice as much as 2017,” and the agency had “taken additional steps to increase compliance rate and time.”

“There still are bad actors," Wheeler said. "We can make the bad actors think twice by rigorously enforcing the law."